Sterling Corporation v. Superior Court

SEAWELL, J.

Petitioner, Sterling Corporation, seeks by

mandamus

to compel Honorable Elias V. Rosenkranz, as judge

pro tempore

of the Superior Court of the County of Los Angeles, to settle and allow a stenographic reporter’s transcript, as provided in section 953a of the Code of Civil Procedure, for use upon appeal in an action wherein the said court rendered judgment against it as defendant and thereafter denied its motion for a new trial. Petitioner alleges that the trial judge refused to certify the transcript because he was of the view that petitioner had failed to comply with the provision of section 953a which requires a party appealing to file with the clerk a request for the transcript within ten days after notice of decision denying the motion for a new trial.

Petitioner alleges that at the time it filed the request for the transcript with the clerk no written notice of the order denying the new trial had been served upon it, and that by virtue of section 953d of the Code of Civil Procedure, enacted in 1927 (Stats. 1927, p. 86), the. ten-day period allowed by section 953a would not begin to run until

written

notice of the termination of the new trial proceedings had been served upon it, unless written notice thereof had been waived in writing or by oral stipulation made in open court and entered in the minutes, which was not the case here. Since the filing of the petition herein, this precise point has been determined in petitioner’s favor by this court in

Griffin

v.

Kent,

206 Cal. 263 [274 Pac. 56], followed by the district court of appeal in

Smith

v.

Wall,

97 Cal. App. 674 [275 Pac. 983], Prior to the decision of this court another division of the district court of appeal had reached a similar conclusion in

Attkisson

v.

Reynolds,

94 Cal. App. 185 [270 Pac. 686].